IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMMERCIAL

ARBITRATION APPEAL (L) NO. OF 2023

IN

COMMERCIAL ARBITRATION PETITION (L) NO. 12873 OF 2023

Mr. Nazir Yusuf Shaikh )

An Adult Indian inhabitant and citizen, )

r/at 301 Marinetter Building )

St. Paul Road, Near Andrews Church )

Bandra West, Mumbai – 400026 ) ... Appellant

Versus

1. New Kamal Kunj Co-operative )

Housing Society Limited )

a Society registered under the )

Maharashtra Co-operative Societies Act, )

1960, having its office at Corner of )

15th & 33rd Bandra West, Mumbai 400050 )

2. The Court Receiver )

Bank of India Building, 2nd Floor )

Mahatma Gandhi Marg, )

Fort, Mumbai - 400 023 )

3. Meeti Developers Pvt. Ltd. )

a company incorporated under the )

Companies Act, 2013, having its office at )

2nd Floor, MME Center, Near Vikas Park, )

Mith Chowky, Link Road, Malad (W), Mumbai ) ... Respondents

TO THE HON'BLE CHIEF JUSTICE AND

OTHER PUISNE JUDGES OF THIS

HON'BLE COURT

THE HUMBLE APPEAL OF THE

APPELLANT ABOVENAMED

APPEAL UNDER SECTION 37 (1) (B) OF THE ARBITRATION &

CONCILIATION ACT, 1996

[1.] The present appeal is preferred by the Appellant under Section 37 (1) (b) of the

Arbitration and Conciliation Act, 1996 ("Arbitration Act") against being

aggrieved by an order dated 12th September, 2023 passed by a Hon’ble

Single Judge of this Hon'’ble Court, in Commercial Arbitration Petition (L)

No. 6410 of 2023 a/w Arbitration Petition (L) No. 12837 of 2023 a/w

Arbitration Petition (L) No. 7273 of 2023 under Section 9 of the Arbitration

Act ("“Section 9 Petitions"”) filed by Respondent Nos. 1 and 2

("“Impugned Order"”). A copy of the Impugned Order is annexed hereto

and marked as EXHIBIT -– "“A"”.

[2.] As the Appellant was not a party to the Section 9 Petitions and the Appellant

was not served with the papers and proceedings in the said Section 9

Petitioners the Appellant is not able to annex the same to the present Appeal

From Order. In these premises, the Appellant is also briefing setting out the

relevant fact in the present matter. In brief, by the Impugned Order was

passed behind the Appellant's back, without the Appellant being a party

before this Hon'ble Court in the “Section 9 Petition”, and without any

opportunity of hearing to the Appellant. Despite this, by the Impugned

Order, the Appellant's settled possession of its premises is threatened to be

taken away by the Court Receiver, High Court Bombay, in a gross violation

of natural justice, and the substantive possessory and property rights of the

Appellant.

[3.] Aggrieved by the Impugned Order, the Appellant is constrained to file the

present Appeal before this Hon'ble Court.

I. PARTIES

[4.] The Appellant is an adult Indian inhabitant and citizen, having his address as

set out in the cause title hereinabove and is a member of the Respondent
 No.1 Society and was the owner of shops forming part of the society

premises which were being redeveloped by Respondent No.2. The Appellant

has been in use and occupation of a shop premises at the periphery of the

Society premises from which he is carrying on his business to support his

family..

1.[5.] Respondent No.1 is a Society incorporated under the Maharashtra Co-

operative Societies Act, 1960 having its office as mentioned in the cause

title. Respondent No.1 is the owner of the property that is subject matter of

the dispute.

[6.] Respondent No.2 is a court receiver being appointed under the Impugned Order.

[7.] Respondent No.3 2 is a company incorporated under the Companies Act, 2013

having its registered office as mentioned in 11 the cause title hereinabove

and was appointed by the Society to carry out redevelopment of the Society

property. However, after. Respondent No.3 is a developer appointed by

Respondent No.1 to redevelop its propertyfailed to carry out redevelopment

of the society property, pay rent / amounts temporary alternate

accommodation to the members, including the appellant and committed

 various other breaches of the development agreement between Respondent

No.1 Society and Respondent No.2 developer, Respondent No.1 Society and

its members were constrained to terminate the development agreement.

II. BRIEF FACTS

2.[8.] Respondent No.1 is the owner of a land bearing admeasuring 3259.80 square

meters comprised in CTS No. F/443/A1 situated at the junction of 15 th and

33rd Road, TPS, VIII, Bandra (West) ("Property"). The Property had a

building standing thereon, New Kamal Kunj ("Building"), which comprised

of 36 flats, 33 shops and 16 garages.

[9.] The Appellant states and submit that he along with his brothers are admittedly

owners and havingof 3 (three shops) at in the Respondent No.1 society

building. That The Appellant’s brother died in the year 2017 and thereafter

the applicant Appellant along with legal heirs of his brother are running the

said shops. The Appellant has been running a meet shop at shop no. 4 in

Respondent No.1/society premises under the name and style ‘Modern

Mutton Shop'.
[10.] The Appellant further states and submits that Respondent No. 1 executed a

Development Agreement dated 27th December 2006 read with Addendum to

Development Agreement dated 18th March 2017, with between Respondent

No. 12 for redevelopment of the Respondent No.1 Society property (“said

Development Agreement") whereby the Respondent No.2 was inter alia

required to (i) to obtain all necessary permissions, sanctions at its own cost,

(ii) demolish the old building and construct new units free of cost and put

the Society members, including the Appellant in possession of the their new

units with Occupation Certificate in a time bound manner, (iii) namely and

New Kamal Kunj CHS Ltd. and respondent no. 3 namely Meeti Developers

Private Limited herein referred as MDPL for sake of brevity and to avoid

repetitionto pay the members of the society, including the Appellant rent /

compensation in lieu of temporary alternate accommodation, as more

particularly set out therein..

[11.] The Appellant states and submit that he is running a meet shop at the shop no.

4 in Respondent No.1/society premises under the name and style Modern

Mutton Shop and The Appellant further states and submit that in the year

2006 the development agreement was executed between Respondent No. 1

and respondent No. 3 dated 9th August, 2006. Thereafter an Agreement for
 permanent alternative accommodation dated 27th July 2017 was entered into,

executed and duly registered by and between the Appellant, Respondent No.

1 and Respondent No. 3 2 (“said PAA”) which also inter alia recorded the

new free of cost permanent alternate accommodation which was to be

provided to the Appellant along with the monthly transit rent / compensation

which was to be paid by Respondent No.2 to the Appellant until Respondent

No.2 put the Appellant in possession of the new premiseswas executed

between and amongst them. There are two other PAA for the other 2 (two)

shops which are substantially similar. Hereto annexed and marked

EXHIBIT “AB” is the Copy of Agreement for Permanent Alternative

Accommodation dated 27th July, 2017 in respect of Shop No.4. I crave

leave to refer to and rely upon the other Permanent Alternate

Accommodation Agreements, when produced and if required.

[12.] The Appellant states and submit that as tThe Appellant has beenwas running

meet shop for which and licenses from have been granted by the relevant

authority was given atfor the said shop no.4 and same cannot be

shifted/transfertransferred society premises. Therefore, the Appellant

requested them to be provided a premises / shop on the society premises

during the course of redevelopment and run the one shop at the Respondent
 No. 1/society premises and he showed his willingness to close the other 2

(two) shops in lieu of rent and with condition that Appellant will be allowed

to run shop No. 4 at some place on Respondent No.1 /society premises.

Respondent Nos.1 and 2 The Appellant states and submit that after

deliberation the Respondent No. 3 and Respondent No. 1 with their consent

agreed to provide me the the Appellant a temporary shop at the periphery /

boundary of Respondent No.1/society premises. Accordingly, Respondent

No.1 and 2 and they constructed and provided a temporary shop at

Respondent No. 1/society premises at the periphery / boundary of the

premises as it was found that the same would not affect the redevelopment

work.

[13.] The society ask applicant to submit and undertaking that in lieu of corpus,

shifting charges and rent the Appellant would vacate and hand over the shop

premises. The said affidavit / declaration / undertaking dated 16 th December

2016 was duly prepared by the Appellant as per the format provided by the

Respondents and after receiving the undertaking they had handover the

temporary premises at society premises. , Hereto annexed and marked

Exhibit “C” is the Copy of the undertaking dated 6th December, 2016 to

this Appeal.
3.[14.] Thereafter, Respondent No.2 defaulted in its obligations and inter alia

stopped paying rent for temporary alternate accommodations to the members

and Respondent No.1 Society was constrained to terminate the Development

Agreement with Respondent No.2. This led to disputes in which the said

Section 9 Petitions came to be filed.

4. The Appellant states and submit thatTo the shock and surprise of the

Appellant the Respondent No.1 /society issued a letter dated 31 st January,

2023 to the Appellant asking the Appellant to hand over possession of the

temporary shop on the basis of some in principle understanding with a new

developer viz. Ajmera Realty and Infra India Limited (“ARIIL”). There was

no general body meeting of the members of Respondent No.1 society to

discuss the appointment of ARIIL as a developer nor was there any

resolution passed by the general asking them to handover the possession of

temporary / Periphery shop to the society for facilitate the development of

society [Link] to appoint ARIIL as the new developer. Further, there

was no mention about payment of rent / compensation for temporary

alternate accommodation. The said shop is the only source of livelihood for

the Appellant and his family members as well as the family of the

Appellant’s brother. With the income from this small business and rent /
 compensation the Appellant and his family would have no means of

supporting themselves. Moreover, the proper procedure was required to be

followed by the Managing Committee of Respondent 1 Society and to

properly inform and update the members of the Society and to take the

majority consent for appointment of a new developer. Hereto annexed and

marked the EXHIBIT “D” is the Copy of letter dated 31st January, 2023.

[15.] The Appellant states and submit in the said letter the society alleged that

society issued several notices to Respondent No. 3/MDPL and its directors

to restart redevelopment activities, which was stagnated due to covid

pandemic and or due to lack of financial and other capabilities of MDPL.

The Appellant states and submit that the society has always kept them in the

dark and never informed about any progress as regards starting

redevelopment activities. Hereto annexed and marked the Exhibit “D” is the

Copy of letter dated 31st January, 2023.

[16.] The Appellant states and submit in said letter the society further alleged that

litigation initiated by Edelweiss before National Company Law Tribunal,

Mumbai, have been terminated. MDPL has failed and neglected to restart the

redevelopment activities.
[17.] The Appellant states and submit that in said letter the society further

informed that society has been negotiating with Ajmera Realty and Infra

India Limited (ARIL) to redevelop the society's property and/or are in

process of finalising the Definitive and other documents. Our clients

vehemently deny that society is authorised to deal with Ajmera Realty and

Infra, India Limited (ARIL) to redevelop society's property and/or are

authorized to proceed further in finalising Definitive and other documents as

falsely alleged. Our client's call upon you to produce authorized resolution to

that effect. The applicant states and submit till date do AGM has been done

to anoint Ajmera Realty and Infra, India Limited (ARIL) as the new

developer and agreement has been execute between and amongst society,

Ajmera Realty and Infra, India Limited (ARIL) and members of the society.

[18.]

[19.] The Appellant states and submit that he replied to the said notice through

his advocate’s leatter dated 13th February, 2023 and inter alia denied the

allegation made in the said notice and further sates that the temporary shop

was constructed and handover to applicant with consent of the society. The

A copy of the Appellant’s advocate’s letter dated 13th February, 2023 is

annexed hereto and marked EXHIBIT “E” to this application.

[20.] The Appellant states and submit that they were not agreeable to the

suggestion that ARIL will give 25% additional area over and above existing

BMC area to each shop owner, out of which 12.5% of such additional area

will be provided on ground floor along with existing shop area and/or

balance 12.5% additional area over and above existing BMC area will be

provided in consolidation scheme to be allotted on first floor of the new

building to be constructed by them.

[21.] The Appellant states and submit that they werewas not agreeable to vacating

the premise until (i) the members of the society were able to duly consider

and the majority approve the proposal of the new developer, (ii) that a fresh

development agreement be placed before, discussed by and approved by the

majority of members of the society with a clear date for completion of the

project, (iii) that a fresh permanent alternate accommodation agreement be

entered into / promised to be entered into in a time bound manner by the new

developer, Respondent No.1 society and the Appellant in respect of all 3

(three) premises and that the Appellant be provided rent / compensation for

temporary alternate premises before vacating the new present temporary

shop [Link] suggestion that one of the conditions for undertaking

redevelopment of the society's property by ARIL is that they would like

 shop premises on periphery to be completely vacated in order to secure

safety and security of people and/or to enable ARIL store construction

material, equipment's, etc. on the property and further states that the said

adjustment were done with consent of earlier developer and society and now

society cannot ask to vacate the said shop premises even without appointing

new developer and /or executing the development agreement with new

developer.

[22.] The said Section 9 Petitions came to be filed by the Respondents which were

decided by a common Appellant states and submit that thereafter the

Respondent No.1/Society and Respondent No.3/Meeti Developer(MDPL)

both filed petition under section 9 of Arbitration and conciliation act 1996

and same was decided by order and judgment dated 12th September, 2023

i.e. the impugned Order. It is pertaining to note that the applicant Appellant

was not a party to the said proceedings and no intimation, notice or

information regarding the litigation between society Respondent No.1

Society and MDPL Respondent No.2 developer were was provided to the

Appellantapplicant and other members of the society. The Appellant states

and submits that the society office bearers by letter dated 29 th September,

2023 informed the members that an order was passed in the Society’s favour
 and they will circulated the order and Judgment dated 12 th September, 2023

to its members, but shame is not circulated till date. The applicant

downloaded the said order from the website of the Hon’ble High Court.

[23.] The Appellant was shocked and surprised to receive Respondent No.1

Society’s The Appellant states and submit that the society suddenly written a

letter dated 15th October, 2023 inter alia and ask calling upon the Appellant

to handover the possession of the said temporary shop to the Court Receiver,

Bombay High Court in view of the impugned Order dated 12 th September

2023, failing which the Court Receiver would take possession thereof. It is

pertinent to note that even this letter did not enclose a copy of the impugned

Order. It was only after this letter was received that the Appellant with his

advocate’s assistance was able to obtain a copy of the said Order from the

website of the Hon’ble Bombay High Court. Hereto annexed and marked as

EXHIBIT “__” is a copy of the said letter dated 15 th October [Link]

allowed the court receiver to take possession of the society premises

including the temporary shop. The Appellant states and submit that the he is

not party to any petition either filed by the society.

[24.] The Appellant states and submit that its appears that the Hon’ble Court was

given impression that the Appellant are and other members are opposing the

development scheme, but the fact is the Appellant never opposed to the

redevelopment and only wished for the proper procedure in accordance with

law to be followed so that the Society members do not end up in an even

worse situation than we have found ourselves in. The shop is run by the him

in temporary premises is no way obstructing the development and that is

why the relief developer has allowed to run our business in the temporary

premises.

5. Being aggrieved by these events the Appellant preferred Interim Application

(L) No. 29119 of 2023 in the said Section 9 Petitions seeking to intervene

therein and for modification of the impugned Order. On __ the Appellant

mentioned the matter and circulation was granted for _____. However, due a

change in the assignment of the Ld. Judge the same was not listed.

6. The Society contacted the Appellant and informed him the matter will be

worked out and his concerns would be addressed. Accordingly, the

Appellant did not press the said Interim Application. The Appellant is ready

and willing to withdraw the said Interim Application if required.

7. In the meanwhile other society members filed various Appeals against the

said Order and by an Order dated 26th October 2023 the Hon’ble Division

Bench of this Hon’ble Court was inter alia directed the Court Receiver,

Bombay High Court not to take steps pursuant to the Impugned Order for

taking possession of the said garages / shops. Hereto annexed and marked as

EXHIBIT “__” is a copy of the said Order dated 26 th October 2023 passed

by the Hon’ble Division Bench of this Hon’ble High Court.

8.

[25.] The Appellant states and submit that he had three shops in the society

premises and two out of three shop has been already closed and surrender for

the development of the society promises and now the he and his brother’s

entire family are dependent on the income of the said shop premises.

9.[26.] In view of what is stated hereinabove our clients state and the Order and

Judgment dated 12th September, 2023 needs to be set aside and/or modified

and possession of the Appellant needs to be protected.

[27.]
[28.] The said letter reproduces a prayer clause which Respondent No.1 contends

have been granted by this Hon'ble Court vide the Impugned Order, viz.

prayer clause (f), which is contended to be as under:

''f. That pending the Commencement and culmination of the Arbitral

Proceedings between the Petitioner and the Respondent and till the Award

becomes executable, this Hon'ble Court be pleased to appoint the Court

Receiver, High Court, or Some such other fit and proper person be

appointed as the Court Receiver, with all powers under 14 Order XXXX -

Rule (1) of the Code of Civil Procedure, 1908 and take the physical

possession from the Respondent and for any person or persons and those

who are not vacating their premises or anyone claiming through or under

them either their staff, workers, personnel or anyone found at the Society

property site, with the help of Police Force, if necessary and to put the

Petitioner in exclusive possession thereof, without royalty and security;"

[29.] The Appellant states and submits that he received the letter dated 25 th

October, 2023 from the Respondent No.1/Society addressing him and

directing to vacate his said shop and to collect the Cheque in pursuance of

Development Agreement dated 21st October, 2023 in order to re-commence

 the redevelopment of the Respondent Society. The Copy of the letter dated

25th October, 2023 is annexed and marked as exhibit “F”.

[30.] The Court receiver issued a letter dated 11 th October, 2023 to the Senior

Inspector of the Police, Khar Police station. The said letter purportedly

addressed by the Court Receiver to the Khar Police Station, requesting

police protection on October 17, 2023, at 10:30 AM, suggesting that the

Appellant will be forcibly dispossessed from his shop without being heard.

[31.] The letter dated 15th October, 2023 was received on 15th October, 2023,

i.e. on Sunday. The Appellant immediately filed an Intervention Application

bearing lodging no. 29119 of 2023 in the Arbitration Petition lodging no.

12837 of 2023 and same is pending for hearing. The Copy of the letter

dated 15th October, 2023 is annexed and marked as exhibit “F”

[32.] The Appellant states and submits that the Respondent No. 1 issued a letter

dated 25th October, 2023 addressing him and directing to vacate his said

shop and to collect the Cheque in pursuance of Development Agreement

dated 21st October, 2023 in order to re-commence the redevelopment of the

 Respondent Society. The Copy of the letter dated 25th October, 2023 is

annexed and marked as exhibit “F”

[33.] However, despite the said Order dated 26 th October 2023, Appellant states

and submits that the Court Receiver again issued a letter dated 12 th

December, 2023 addressed to the Senior Inspector of the Police, Khar Police

station. The said letter purportedly addressed by the Court Receiver to the

Khar Police Station, requesting for police protection on 21st December,

2023, at 11:00 AM for taking possession at the suit premises except for the

premises of the members who have filed appeals. The Appellant apprehends

that he will be forcibly disposed from his shop despite the said Order dated

26th October 2023, , suggesting that the Appellant will be forcibly

dispossessed from his shop without being heard. Hereto annexed and

marked as EXHIBIT “__” is a copy of the said letter dated 12 th December

2023.

[34.]

[35.] The Appellant states that there are some other persons whose shops and

garages are situated at same suit premises that the some of the shop/garage

owners has filed an appeal before this Hon’ble court and they have been

granted protection by this Hon’ble Court. That there is extreme urgency as

 the livelihood of the entire family of the Appellant depends on the Income

from the said shop. If the possession of the shop is taken from the Appellant

then Appellant will suffer great harm and injury and whereas no harm and

injury will cause to the Respondents if relief prayed by the Appellant are

granted.

III. GROUNDS:

10.[36.] Aggrieved by the Impugned Order, the Appellant is constrained to

approach this Hon'ble Court by way of the present Appeal on the following,

amongst other grounds, each of which are taken without prejudice to and in

the alternative to one another:

A. The Impugned Order is passed in complete violation of the basic and

cardinal principles of natural justice.

[B.] Pursuant to the Impugned Order, the Appellant is sought to be

dispossessed from his garagesshop, without any opportunity of

hearing, and without being made a party to the proceedings. This is

completely unthinkable, and unjust.

[C.] No prior notice for hearing to vacate the temporary shop premises was

ever served upon the Appellant. Hence, the Appellant had no

opportunity to present his case and be heard on merits.

[D.] Respondent No.1 and 3The Respondents haves played a fraud upon the

Ld. Single Judge by snatching a cleverly worded relief in terms of

prayer clause (f) without joining the parties to the captioned

Arbitration Petition who are directly affected from the Impugned

Order. If Respondent No.1 was seeking relief against the Appellant

and other Shop/garage owners, it was incumbent upon Respondent

No.1 to join the Appellant and the other garage owners to the

captioned Arbitration Petition.

B.[E.] By the Impugned Order, the Appellant's rights are essentially finally

determined, that to at an interlocutory stage, and that to without

hearing the Appellant. The Appellant is sought to be dispossessed, and

every claim that the Appellant would agitating if he would have been

made a party to the said proceedings filed by respondent no.1

C.[F.] The Impugned Order has the effect of indirectly decreeing

Commercial Suit No. 449 of 2019, without any opportunity of hearing

to the Appellant and the other garage/shop owners.

D.[G.] The Impugned Order grants final reliefs and the interlocutory stage,

which is well settled, is impermissible in law. The reliefs granted

render the Appellant's claims an exercise in futility and have the effect

of finally and conclusively determining rights and obligations without

any opportunity to the Appellant to present his case.

E.[H.] The Impugned Order was clearly snatched in a mala fide manner by

misleading the Ld. Single Judge. When Commercial Suit No. 449 of

2019 including the Notice of Motion No.819 of 2019 was pending, to

the Respondents' knowledge, it was completely unfair, and an over-

reach, to snatch the Impugned Order that too behind the back of the

shop/garage owners.

F. The Respondent No.1, through the Court Receiver, is seeking to take

possession / disposes the Appellant from his shop premises with

police assistance despite the said Order dated 26 th October 2023,

which remains in force and which specifically records:

 It is made clear that till next date, the Court Receiver
shall not take any steps pursuant to the Impugned Order
for taking possession of the said garages/shops.
[I.] ____________Please add any other ground

11.[37.] This Appeal is filed in extreme urgency. The Appellant therefore craves

leave to supplement and/or modify the grounds set out above, as also the

facts set out above, as and when required.

12.[38.] The Appellant therefore submits that the Impugned Order is unsustainable

on facts and in law and must be set aside.

13.[39.] The present Appeal has been filed after a delay of ___ days, in view of the

notice dated 12th December 2023, within the period of limitation prescribed

in this regard. The Appellant is preferring a separate application for

condonation of delay in this regard.

14.[40.] The Appellant, who is conversant with the facts of the present Appeal and

is able to depose to the same has signed and verified the present Appeal.

15.[41.] The Appellant has paid the court fees amount to Rs. __ _

16.[42.] The Appeal is bona fide and made to advance the ends of justice.
17.[43.] The Court Receiver, High Court Bombay has threatened to take

possession of the Appellant's Garages on 21st December, 2023, at 11:00 AM,

which the Appellant was informed of only on 14 th December,2023. There is

thus extreme urgency in the matter.

18.[44.] The Appellant submits that unless the relief prayed for is granted, the

Appellant will be put to irreparable harm, loss, prejudice and injury, whereas

the Respondents will suffer no harm loss or injury if the relief prayed for is

granted. Further, the balance of convenience is in favour of the Appellant

and against the Respondents. The Appellant has a very good prima facie

case.

[IV.] PRAYER

In the circumstances, the Appellant respectfully prays that this Hon'ble

Court be pleased to:

[A.] Set aside the Impugned Order dated September 12, 2023 [Exhibit -

"A"];
 [B.] Pending the hearing and final disposal of this Appeal, stay the effect,

operation, and implementation of the Impugned Order dated

September 12,2023 [Exhibit - "A"];

[C.] Ad-interim relief in terms of prayer clause (B);

[D.] Costs of this Appeal;

[E.] For such further and other reliefs as this Hon'ble Court deems fit.

Dated __ this day of December,2023